Citation Nr: 1123105
Decision Date: 06/16/11 Archive Date: 06/28/11
DOCKET NO. 09-35 139 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to an effective date earlier than December 4, 2008, for a grant of service connection for depression.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The Veteran served on active duty from December 1972 to March 1974.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO).
FINDINGS OF FACT
1. In a July 2007 rating decision, the RO denied the Veteran's claim of service connection for depression; later that month, he was provided notice of the July 2007 rating decision but did not appeal this determination.
2. In a telephone call received at VA on December 4, 2008, the Veteran requested that his claim for service connection for depression be reopened.
3. In a rating decision dated in March 2009, the RO granted service connection for depression effective December 4, 2008, the date of receipt of the phone call requesting that the claim be reopened.
4. No document dated or received after notice of the July 2007 rating decision and prior to December 4, 2008, represents an application to reopen the claim for service connection for depression.
CONCLUSIONS OF LAW
1. That portion of the July 2007 rating decision that denied service connection for depression is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007).
2. The criteria for an effective date prior to December 4, 2008, for a grant of service connection for depression are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(q), (r) (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Federal Circuit held that 38 U.S.C. § 5103(a) does not impose its notice obligations upon receipt of a notice of disagreement with the rating and effective date assigned by a RO for an award of benefits. As such, once the March 2009 rating decision was made awarding service connection, an effective date, and a rating for depression, 5103(a) notice had served its purpose, as the claims had already been substantiated. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Sutton v. Nicholson, 20 Vet. App. 419 (2006).
As for the duty to assist, VA clinical and examination reports have been obtained, and as there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. To this end, as the resolution of a claim for an earlier effective date is necessarily based on the facts as they existed at the time the effective date in question was assigned, no additional development is necessary. See Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001).
II. Legal Criteria/Analysis
The Veteran has expressed disagreement with the effective date of December 4, 2008, assigned by the RO for service connection for depression. He argues that the effective date for service connection for depression should have been assigned from May 2004 when, according to the Veteran, he was discharged from a VA mental health facility and found to be physically and mentally disabled.
Under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence (other than service department records) received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. See also 38 U.S.C.A. § 5110.
In a rating decision issued in July 2007, the RO found that he Veteran had not submitted sufficient new and material evidence to reopen his claim for service connection for depression as secondary service-connected disability. After being provided notice of the adverse decision and his appellate rights later in July 2007, the Veteran did not appeal the rating decision, and it became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007).
Following the final disallowance in July 2007, no further communication was received from the Veteran regarding a claim for service connection for depression until December 4, 2008, when VA received a phone call requesting that his claim for service connection for depression be reopened. As indicated above, following the receipt of this phone call, the RO granted service connection for depression in the March 2009 rating decision, effective from the December 4, 2008, phone call. This decision followed receipt of evidence not of record at the time of the July 2007 rating decision in the form of reports from a December 30, 2008, VA examination that found it "more than likely" that the Veteran's depression was secondary to service connected disability (dyspahgia secondary to ACDF C3-C4). While the July 2007 rating decision found that new and material evidence had not been received to reopen the claim for service connection for depression secondary to a different service connected disability than dysphagia, namely, residuals of an umbilical repair with rectus diastases, the Board notes that once a claim has been the subject of a final denial, it is considered denied on all theories of entitlement. See Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). As such, the Veteran was required to submit new and material evidence to reopen the claim denied in July 2007.
A claim that specifically identifies the benefit sought must be filed in order to obtain such benefit. 38 U.S.C.A. § 5101(a); see also 38 C.F.R. § 3.151(a); Mitscher v. West, 13 Vet. App. 123, 127 (1999). Both statutes referred to above (§ 5110 and § 5101) "clearly establish that an application must be filed." Crawford v. Brown, 5 Vet. App. 33, 35 (1993), citing Wells v. Principi, 3 Vet. App. 307 (1992). A "claim" is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2010). An informal claim is any communication or action indicating an intent to apply for one or more VA benefits. 38 C.F.R. § 3.155(a) (2010).
VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). If VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Servello, 3 Vet. App. at 200.
In the present case, because the grant of service connection for depression was based on a reopened claim as a result of the receipt of new and material evidence, the effective date in this case has, therefore, to be assigned based on the provisions of § 3.400(q)(2) and (r), which means that the effective date will be the later of either the date when the reopened claim was received (December 4, 2008) or the date when entitlement arose.
As noted earlier, VA received the phone call requesting the RO to reopen the claim for service connection for depression on December 4, 2008. As such, the remaining inquiry is whether an informal claim for service connection for depression was filed at any time between the date of the notice of the final denial of the claim for service connection for depression in July 2007 and December 4, 2008. If it were shown that such an informal claim was received in this time period, an effective date earlier than December 4, 2008, may be warranted.
However, the record fails to show that the Veteran submitted an informal claim for service connection for depression that was received between the notice of the July 2007 rating decision and December 4, 2008. An informal claim was not submitted under 38 C.F.R. § 3.155 because no communication was ever filed between both dates indicating the Veteran's intent to reapply for service connection for depression. An informal claim must identify the benefit sought. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (noting that VA "is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed," and citing Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995), for the proposition that VA is not required to do a "prognostication" or "conjure up" issues that were not raised by the appellant, but to review issues reasonably raised by the substantive appeal). These cases make it evident that a Veteran's service treatment records cannot be construed as constituting an informal claim for service connection. A claimant still has to let it be known, in some way, that he is seeking service connection for a particular disability before it can be concluded that any statement to that effect is considered an informal claim.
An informal claim for service connection for depression was not submitted under 38 C.F.R. § 3.157 either because, insofar as the Veteran had not been granted service connection for that disability prior to December 4, 2008, a mere review of medical records dated prior to that date could not have been construed as an informal claim under § 3.157. See Lalonde v. West, 12 Vet. App. 377, 382 (1999).
Having determined that the claim representing a request to reopen the claim for service connection for depression was submitted on December 4, 2008, a finding as to when entitlement to this benefit arose is unnecessary insofar as, per the applicable regulation, an effective date earlier than December 4, 2008, would not be warranted: As indicated earlier, the effective date in cases where service connection has been granted after the claim has been reopened shall be the date of the filing of the claim or the date when entitlement arose, whichever is later. This fact notwithstanding, even were the December 30, 2008, VA examination that included the opinion linking depression to service connected disability be considered an informal claim, as this examination was conducted after the December 4, 2008, phone call, the date of this examination would not provide the Veteran entitlement to an earlier effective date.
In short, the record shows that the RO denied a claim for service connection for depression in a July 2007 rating decision, which became final because it was never appealed; that the request to reopen the claim was received by the RO by way of the December 4, 2008, phone call; and that an informal claim for this particular benefit was never filed between the notice of the July 2007 rating decision and December 4, 2008. In view of these findings, the Board concludes that there is no legal entitlement to an effective date earlier than December 4, 2008, for a grant of service connection for depression. As such, the effective date desired by the Veteran of May 2004 is precluded by the controlling legal authority described above.
While the Board has considered the possibility of resolving any reasonable doubt in favor of the Veteran, the Board finds that a clear preponderance of the evidence is against the claim. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001.
ORDER
Entitlement to an effective date earlier than December 4, 2008, for a grant of service connection for depression is denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs